THE PARENTS sat in the jury box, tense and silent. In the upper row, Joe Vitale clutched his husband’s hand and tried not to worry about Cooper, home with an aunt in New York City. In the front row, Pam Yorksmith eyed three-year-old Grayden and the iPad wobbling in his lap, entirely unsure whether episodes of Mickey Mouse Clubhouse would get him through the next two hours.
“It’s about families, Judge,” Al said when the hearing in federal court was called to order just after ten A.M. on a brisk Friday in April. Outside, happy shoppers sampled pulled pork and gourmet popcorn at a street market on Fountain Square. Inside the courtroom, with its heavy drapery and wood walls, three teams of lawyers waited in leather chairs directly in front of Judge Timothy Black. Jim Obergefell sat alone behind them.
Judge Black eyed the parents and three pregnant women in the jury box to his left. “Well, let us proceed,” he said.
“May it please the court,” Al began. “This case is about families and the duty to treat families with same-sex married parents equal to families that have opposite-sex married parents. At this point, seventeen states plus Washington, D.C., permit same-sex marriages. Last December, you ordered Ohio to recognize same-sex marriages from those states in the context of death certificates when one of the [spouses] dies. In this case, we’re asking you to order Ohio to recognize same-sex marriages from those states in the context of birth certificates—and in other contexts—”
“Excuse me,” the judge interrupted. “In the prior case, the court ruled that Ohio had to recognize death certificates as it applies to Mr. Obergefell and the additional plaintiff. It was a limited ruling. Today, you seek a ruling striking down the constitutional amendment and the statute in whole as applied to everyone. Is that right?”
“That’s correct with respect to marriage recognition.”
Joe Vitale had read Judge Black’s earlier ruling on death certificates, but now Al had elevated the dispute and was attacking the law itself. A facial challenge. The term had been new to Vitale, but it was clear that Al intended to ask the judge to take an unusual step, quashing a good part of a law that had been passed by Ohio’s voters.
Al pointed to Document 66 in the case file, already more than a thousand pages thick with legal briefs and expert reports. It was Judge Black’s first ruling on death certificates.
“Consistent with your finding,” Al told the judge, “. . . the marriage recognition bans deny due process and equal protection, and the benefits of the existing marriages of people married in other states who are denied equal protection of the law when they come to Ohio. So you’ve already made a finding, although not a formal declaration or injunction, and that’s where we’re headed, hopefully, today.”
“The Court recalls its prior decision.”
“. . . What I would like to do today, Judge, is talk to you about whose rights are being denied.” Al looked at the plaintiffs in the jury box. “They’re all married in states where same-sex marriage is legal. All are establishing their families, bringing children into their lives.”
Al thought of his three grown children and quipped, “Sometimes I wonder why they do that, but that’s not for us to decide.”
Judge Black, with two grown daughters, smiled, and said, “Well, the Court’s prepared to rule on that issue because it’s the greatest source of joy in the world.”
Vitale told himself: Breathe. Breathe. He thought of Cooper again and how he turned mundane things into full color, the pigeon on the park bench, the sprinkle cookie in the bagel shop, every day new and animated.
Al went on smoothly. “So, if they were opposite-sex married couples, we wouldn’t be here.”
Al introduced Pam and Nicole Yorksmith and the two other female couples, pregnant through artificial insemination. “With married, opposite-sex couples, when they [give] birth due to artificial insemination, the spouse is presumptively on the birth certificate as the second parent.”
He introduced Vitale, Talmas, and their adoption decree from New York, which stated that Cooper “shall be treated in all respects as the lawful child of the adoptive parents.”
“So if they were an opposite-sex couple, we wouldn’t be here because both of their names would be on the adopted child’s birth certificate. But because they are a same-sex couple, Ohio will not honor their New York decree. Rather, Ohio requires them to choose between themselves and list only one as parent of the adopted child. Even though they are both parents, Ohio says, ‘Only one of you can be on the birth certificate.’”
“My spouse wouldn’t put up with that,” Judge Black said.
“Well, they aren’t either, and that’s why we’re here,” Al replied. “. . . This is a serious problem. I mean, first, at a very basic level, at the basic level of human dignity, that dignity is denied by the way Ohio treats these couples. The first document that’s welcoming their child into our civil society, the birth certificate, is going to be wrong. It’s going to misidentify the child’s parent only because the child has same-sex parents.”
In the jury box, Vitale felt himself beginning to relax. Doubt had given way to a faint flicker of hope. “This is bizarre,” Al went on. “In an era when we look for parents to step up and do their jobs, Ohio is saying, ‘Well, we’re only going to recognize one parent for children of same-sex couples.’ That’s outrageous and totally discriminatory.”
Caught up in his argument, Al stopped reading from his notes, seventeen pages separated by topic in a three-ring binder. “. . . The state says we should honor the democratic process, which this court correctly disposed of in Obergefell. You cannot by popular vote deny constitutional rights to the minority. And the fact that it was voted on by the people doesn’t make an unconstitutional law survivable.”
Judge Black cut in. “As to the vote, the citizenry has trouble understanding that. Would you spend a little time on that and give me some analogies?”
At Beloit College in the late 1960s, Al had studied commentaries on the Constitution with Professor Harry Davis, who would spend forty-two years teaching political science. Al thought of an essay he had read in the professor’s class, written by Alexander Hamilton when the founding fathers were promoting the ratification of the Constitution.
Federalist Paper 78, on the power of judicial review, was published in 1788.
Independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens by unjust and partial laws.
In the Constitution, Al learned, the oppressed held a trump card.
“We shouldn’t have the tyranny of the majority,” he said, his voice rising. “. . . And why is that? Because people can be whipped up into passion and then use their vote to deny to some insular minority, to some unfavored group, some flavor of the day that people are willing to discriminate against, whether it’s blacks, whether it’s illegitimate children, whether it’s people from other countries, and they can vote away that group’s rights. And from the very beginning of our country, the founding fathers, and mothers, said, well, we have to create a system where we can stop that, where we identify certain principles and those principles have to be honored even in the face of legislation passed by the majority.”
“. . . So our Constitution and Bill of Rights provides a limited number of fundamental rights?” the judge asked.
“Right.”
“And that’s because we protect the minority from the oppression of the majority?”
“Right.”
“And if one of the fundamental rights of the minority is violated in our country, the courts are required to stop it?”
“That’s absolutely true,” Al said. “And it goes to the central purpose of our civil society. We are a welcoming nation. We are a nation that encourages open thought, open speech, and encourages open communities. . . . Unless we accept people who are not in the majority, then we are denying the very core principles of our nation.”
Al looked down at his notes again and delivered a parting line. “We do ask that . . . you declare the marriage bans unconstitutional in all applications in Ohio.”
The state’s attorney, Ryan Richardson, was nine months pregnant, and from the jury box, Joe Vitale’s very first thought was, You’re going to stand up there and argue against parenthood?
But Richardson, an expert in constitutional law, would focus on the state of the law, just like Bridget Coontz had done during the death certificate hearings. Since the beginning, Ohio attorney general Mike DeWine had made a strategic decision to focus only on the democratic process—respecting the will of Ohio’s voters and their right to pass laws—steering clear of emotionally charged questions about the rights of gay couples and their families. It was a decision that Bridget Coontz, Richardson’s supervisor, could live with, given that she personally supported same-sex marriage and had gay friends with adopted children.
When Coontz walked into the federal courthouse with Richardson that morning, she told herself, once again: My clients got sued. My job is to defend my clients. The decision whether to defend wasn’t mine—it was based on the state of the law.
Coontz spotted Grayden Yorksmith in the jury box and briefly wondered whether her own four-year-old daughter could sit through a two-hour court hearing. Then she put on her game face, knowing full well that much of the room would accuse the state’s lawyers of being antigay and antichildren.
“From the outset of this litigation, including throughout the complaint, plaintiffs limited this case to the context of birth certificates and sought relief for the specific plaintiffs involved in this lawsuit,” Richardson said. “As plaintiffs acknowledge today, however . . . they ask this court for a sweeping relief invalidating the marriage recognition laws in all of their applications. This court should decline to do so. . . . Neither defendant nor the court has the opportunity to fully evaluate and analyze the potential impact of the sweeping relief that plaintiffs request.”
Judge Black frowned. “Are you asking for a continuance?”
“We’re not asking for a continuance, Your Honor. . . . We would note that, as this court is aware, plaintiffs sought an expedited case schedule here because of the alleged exigencies that related to the specific plaintiffs.”
“That’s lawyer talk for the fact that they’re going to have children any day now?”
“With which I sympathize,” Richardson answered.
“I wasn’t going to comment,” Judge Black said, “but you’re going to get through this argument, is that right?”
“I think so. I think we’re safe.”
“Congratulations. You apparently are due in three weeks, correct?”
“That is correct.”
“We checked that out before we permitted you to argue,” the judge chuckled. “You can gather yourself. I’m sorry.”
Richardson wanted the judge to see how broad the case had become and limit his ruling only to the plaintiffs in the jury box. “And as a result of those exigencies and the arguments that . . . plaintiff’s counsel made about the narrow scope of this case,” she said, “the parties agreed to, and this court approved, an extremely expedited case schedule that involved resolving this litigation entirely in less than two months.”
“Every day there’s a violation of constitutional rights gives rise to irreparable injury, is that true?” Judge Black asked.
“We respectfully suggest that they have not demonstrated that there is a constitutional violation,” Richardson replied. “. . . Deference is particularly important here where we are dealing with a statute that has been enacted by the voters.”
“I’m worried,” the judge said minutes later, “that lawyers who argue that the will of the voters trumps all misrepresent the law.”
“And, Your Honor, we don’t mean to suggest that the will of the voters trumps everything in all cases, but we certainly believe that it is under what the courts have clearly said, an important consideration,” Richardson replied. “Saying that the will of Ohio voters cannot be considered sort of assumes that the statute is unconstitutional, which we suggest it isn’t. . . . The traditional definition of marriage is a conceivable rational basis that we believe that the voters were allowed to bear in mind at the time that they voted, and it does support the challenged marriage recognition laws here.”
“Well, then how did the ban against whites and blacks marrying get struck down?”
“Again, Your Honor, clearly the law does not allow the will of voters to trump in all cases, and where a statute is determined to be unconstitutional, the fact that it was a popular enactment will not save an otherwise unconstitutional statute, as was the case there.”
Judge Black wasn’t satisfied. “Actually, I’m focused on the traditional definition of marriage. The traditional definition of marriage was that it wasn’t between blacks and whites and then the Supreme Court struck that down.”
“That’s correct,” Richardson replied. “. . . But in this case, with respect to the issue of same-sex marriage, the courts have repeatedly acknowledged that tradition is something that can be taken into account.”
From the jury box, Joe Vitale cringed. He had come to despise the term traditional marriage because he knew that his marriage didn’t qualify. He reached for his husband’s hand again, thinking about their seventeen years together and the way he felt about his family on weekend mornings when Cooper climbed into bed between them, smelling like baby shampoo.
“Well, we’ve had full-blown oral argument,” Judge Black told the lawyers. “I’m not going to render a decision from the seat of my pants. I am going to take it under consideration and will issue a significant, thorough written decision.”
Vitale held his breath, unsure what would happen next. He looked at Al, who was looking at the judge. The room was still.
Seconds later, Judge Black said, “. . . I intend to issue a declaration that the Ohio recognition bans that have been relied upon to deny legal recognition to the marriages of same-sex couples validly entered in other states where legal violate the rights secured by the Fourteenth Amendment to the United States Constitution.”
He went on, “. . . I anticipate issuing a permanent injunction prohibiting the defendants and their officers and agents from enforcing the marriage recognition bans in Ohio.”
The judge promised a written decision within ten days. “Court prepares to recess,” he said and stood up. “Godspeed.”
Vitale could see his husband tearing up, and he looked away because he didn’t want to cry. In the hallway outside the courtroom, Vitale found Al and pulled him aside. “Can Judge Black change his mind?”
“He can do whatever he wants,” Al said carefully. “We’ll just have to wait.”
Twenty-eight years before the hearing, when Tim Black was still litigating civil disputes as a cub lawyer at a large Cincinnati law firm, he and his wife adopted their first child, a three-day-old baby they named Abby. Their second daughter, Emily, was born biologically four years later. Every year on April 14, the day that Abby Black’s adoption was finalized, the family of four sang a John McCutcheon folk song called “Happy Adoption Day.”
For out of a world so tattered and torn,
You came to our house on that wonderful morn
And all of a sudden this family was born
Looking at the pensive plaintiffs in the jury box, the two men clutching hands, the pregnant women and their wives, the toddler fixed on his iPad, Judge Black once again decided that fundamental constitutional rights had been violated by the whims of the Ohio electorate. He found the state’s case devoid of any rational justification to support the ban on marriage recognition and the policy on birth certificates arbitrary discrimination based on sexual orientation.
Over ten days, he drew up a forty-five-page order ruling that Ohio’s ban on marriage recognition violated the right to equal protection and due process. The Fourteenth Amendment, among the most litigated sections of the U.S. Constitution, was ratified in 1868 to address the rights of former slaves after the Civil War. Now it would address the rights of the gay community of Ohio.
On the first page of his order, Judge Black wrote in bold, underlined letters: “Ohio’s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances.”
On the second page, he cited an opinion by the U.S. Supreme Court, rendered more than seventy years earlier, that protected students who chose not to recite the Pledge of Allegiance in school. “One’s right to life, liberty and property, to free speech, to a free press, freedom to worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections,” the court wrote.
The marriage ban in Ohio, Judge Black found, “embodies an unequivocal, purposeful and explicitly discriminatory classification, singling out same-sex couples alone, for disrespect of their out-of-state marriages and denial of their fundamental liberties.”
On April 14, his daughter’s adoption day, Judge Black released his final ruling. On the last page, he included the words to the John McCutcheon song, which he still texted every year to Abby, who was married and living in California.
There are those who think families happen by chance . . .
But we had a voice and we had a choice
We were working and waiting for you.
Though Judge Black had announced during the hearing that he would side with the plaintiffs, his ruling officially overturning Ohio’s marriage recognition ban topped the nightly news. During a press conference on the steps of city hall, surrounded by the mayor and half of the city council, Chris Seelbach declared, “Most Ohioans believe that gays and lesbians should be treated equally under the law.”
Al wasn’t surprised when the state announced it would appeal the ruling to the Sixth Circuit, where an appeal was already pending for the death certificate case. At the federal courthouse, Cincinnati’s WLWT News Five filmed a handful of protesters gathered with signs that read SODOM BURNED and ETERNAL FIRE.
Inside his suite of offices on the eighth floor, Judge Black sat quietly at his desk, under a black-and-white photo of his family taken during his first campaign for municipal court judge in 1993. King Solomon had once said, “If you see oppression of the poor, and justice and righteousness trampled in a country, do not be astounded.”
The courts were places of recourse. The judge had done what needed to be done.